Ann DENONCOURT, Donald R. Tinsman, Linda T. Butler and Rudolph E. Butler, Jr.,

Supreme Court of Pennsylvania
504 Pa. 191,  470 A.2d 945 (1983)

FLAHERTY, Justice.

 This is an appeal from an order of the Commonwealth Court, 73 Pa.Cmwlth. 59, 457 A.2d 213, granting summary [p. 194] judgment to the State Ethics Commission in a class action [n. 2] brought by incumbent school directors seeking declaratory and injunctive relief from the enforcement of Sections 4, 5 and 9 of the Public Officials Ethics Act (Ethics Act) [n. 3] on the grounds that these sections of the act are unconstitutional.  These sections of the act provide, in essence, that a public official must, as a condition for taking the oath of office or continuing to perform his duties, and as a condition to receive payment for his services, file a statement of financial interests, § 404(d), which statement shall include the following information with respect to the public official and members of his "immediate family," i.e., "[a] spouse residing in the person's household and minor dependent children," § 402:

(1) The name, address and position of the person required to file the statement.
(2) The occupations or professions of the person required to file the statement and those of his immediate family.
(3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions; purchased or leased from the Commonwealth, any of its agencies or political subdivisions;  or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions.
(4) The name and address of each creditor to whom is owed in excess of $5,000 and the interest rate thereon.  However, loans or credit extended between members of the immediate family and mortgages securing real property [p. 195] which is the principal residence of the person filing or of his spouse shall not be included.
(5) The name and address of any person who is the direct or indirect source of income totalling in the aggregate $500 or more.  However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics.
(6) The name and address of any person from whom a gift or gifts valued in the aggregate at $200 or more were received, and the value and the circumstances of each gift.  However, this provision shall not be applicable to gifts received from the individual's spouse, parents, parents by marriage, siblings, children or grandchildren.
(7) The source of any honorarium received which is in excess of $100.
(8) Any office, directorship or employment of any nature whatsoever in any business entity.
(9) Any financial interest in any legal entity engaged in business for profit.
(c) The statement of financial interest need not include specific amounts for any of the items required to be listed.
 65 Pa.C.S.A. § 405(b), (c).  The penalty section of the act provides, in pertinent part:
(b) Any person who violates the provisions of ... section 4 [section 404 of Title 65] is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned  for not more than one year, or be both fined and imprisoned.
 65 Pa.C.S.A. § 409(b).  This appeal followed Commonwealth Court's grant of summary judgment to the Ethics Commission.

 Appellant school directors allege that these provisions of the Ethics Act are unconstitutional as to the directors in that the statutory provision for criminal prosecution in the event of non-disclosure of the financial affairs of members of his immediate family denies due process to the school director because, in the case of these directors, the act [p. 196] would impose criminal liability based on an inability to comply with the act's requirements, not an unwillingness to comply.  ***


 The penalty section of the act, § 409, supra, by its terms, provides that a public official who does not file the information required by § 404 "is guilty of a misdemeanor and shall be fined ... or imprisoned ... or ... both."  No mention is made of a requirement of criminal intent or criminal culpability.  To the contrary, criminal liability may be imposed by the mere non-compliance with the reporting requirements of the act.  The public official, therefore, on the one hand, is required to file financial information concerning himself and his immediate family, and failure to do this may result in criminal liability;  but on the other hand, the official may have no means to acquire and file the information he is required to produce.  As we have had occasion to observe before, a married couple is not a single entity, but separate individuals, each of whom controls or has the right to control his own life, associations, finances, and affairs generally:
Any presumption of identity of interest [between husband and wife] is based upon the same outmoded social conditions and policy as was the common law legal fiction of unity of person of husband and wife.

* * *

Modern conditions demand that courts no longer engage in automatic and unsupported assumption that one's pecuniary or proprietary interest is identical to that of one's spouse.
 Estate of Grossman, 486 Pa. 460, 472-73, 406 A.2d 726 (1979).  See also  Snider v. Thornburgh, 496 Pa. 159, 180 [p. 197] (Opinion of Mr. Justice Flaherty), 186 (Opinion in Support of Reversal, Mr. Chief Justice Roberts), 436 A.2d 593 (1981).  Thus, under the terms of the Ethics Act, criminal liability may result from non-compliance with reporting requirements with which a public official may have no ability to comply.  Imposition of such criminal liability offends due process, for it is axiomatic that criminal liability may not be imposed for the failure to perform acts which a person has no power to perform.  Rather, the essence of our criminal law is the imposition of criminal liability for voluntary, culpable acts, see 18 Pa.C.S.A. §§ 301, 302, which are offensive to public order and decency.  Thus, the reporting requirements of the Ethics Act do not withstand a due process challenge. [n. 4]


 HUTCHINSON, Justice, concurring and dissenting.

 I concur in the result the majority reaches only insofar as it finds unconstitutional the spousal disclosure provisions of our Public Officials' Ethics Act.  Such disclosure is in my view based on outmoded notions of spousal unity and subservience.  Although I share the dissent's concern that removal of this requirement may render the act meaningless in its application to some officials who are members of traditional families, I believe that concern is outweighed by the danger of imposing the sanction of removal or the sanctions of the criminal laws on other public officials whose spouses commonly follow independent private careers and would be unwilling or unable to make the disclosure called for by the statute.  In such cases the requirement of spousal disclosure seems to me to subject such officials to prosecution based on status.


 NIX, Justice, dissenting.